INTRODUCTION AND BRIEF DESCRIPTION

Provincial court judges must impose the least intrusive terms and conditions possible in determining a Section 117.011(5) order.

SECTION WORDING

117.011(6) In determining terms and conditions under subsection (5), the provincial court judge shall impose terms and conditions that are the least intrusive as possible, bearing in mind the purpose of the order.

EXPLANATION

Section 117.011(6) of the Criminal Code of Canada outlines the process for determining the terms and conditions of a peace bond order. A peace bond is a court order that requires a person to keep the peace and be of good behavior for a specified period of time. When a peace bond order is issued, the provincial court judge is required to impose terms and conditions that are the least intrusive as possible, while still fulfilling the purpose of the order. This means that the judge must carefully balance the need to protect the public or complainant with the rights and freedoms of the accused. The purpose of a peace bond is to prevent the commission of a crime or to ensure public safety. To achieve this purpose, the judge may impose conditions such as prohibiting the accused from contacting the complainant or entering a specific area, requiring the accused to attend counseling or treatment, or surrendering any weapons in their possession. However, the judge must carefully consider the impact of these conditions on the accused's liberty and privacy rights. For example, if the accused relies on a specific area for employment or housing, a condition prohibiting entry into that area could have serious consequences. The judge must also consider whether the terms and conditions are necessary and proportional to the risk posed by the accused. Overall, Section 117.011(6) requires judges to carefully balance the competing interests at play when imposing terms and conditions on a peace bond order. This ensures that peace bonds are used judiciously and that the accused's rights and freedoms are respected to the greatest extent possible.

COMMENTARY

Section 117.011(6) of the Criminal Code of Canada deals with the determination of terms and conditions for a peace bond order. A peace bond order is a court order that requires a person to keep the peace and be of good behavior for a certain period of time. It is typically used to prevent a person from committing a crime or engaging in threatening behavior. The section requires that when a provincial court judge is determining the terms and conditions of a peace bond order, they must impose terms and conditions that are the least intrusive as possible. The purpose of this requirement is to balance the need for protecting the potential victim or community against the individual's right to freedom and dignity. The section also stresses the importance of bearing in mind the purpose of the order when determining the terms and conditions. The purpose of the peace bond order is to prevent the individual from engaging in criminal behavior or violence. Therefore, the terms and conditions of the peace bond order should be directly related to that purpose. The requirement of imposing the least intrusive terms and conditions is consistent with the fundamental principles of Canadian criminal law. Canadian criminal law is based on the principles of proportionality, necessity, and restraint. These principles require that any interference with individual rights be proportionate to the legitimate objectives of the state and necessary to achieve those objectives. They also require that the interference is restrained to the minimum necessary to achieve the objectives. The least intrusive requirement is particularly important because peace bond orders are preventative measures rather than criminal sanctions. Therefore, they do not require proof beyond a reasonable doubt or any finding of guilt. Peace bond orders can have significant consequences on an individual's liberty, reputation, and employment prospects. Therefore, it is important to ensure that they are not overly intrusive. In addition to the requirement of imposing the least intrusive conditions, section 117.011(6) also requires that the judge consider other factors when determining the terms and conditions of the peace bond order. These factors include the nature of the offense or the threat to the safety of any person, the offender's criminal record, and any other relevant factors. Overall, section 117.011(6) is an essential provision that ensures that peace bond orders are proportionate and necessary measures to protect against potential criminal behavior or violence. It upholds the fundamental principles of Canadian criminal law and emphasizes the importance of balancing individual rights with the protection of the community.

STRATEGY

When dealing with Section 117.011(6) of the Criminal Code of Canada, there are several strategic considerations that need to be taken into account. These considerations are pertinent because they determine how the order will be imposed and its efficacy. Some possible strategic considerations are as follows. Firstly, the purpose of the order is critical when determining the least intrusive terms and conditions. The order is meant to protect against the risk of terrorism, so any terms and conditions must aim towards reducing this risk. Therefore, the judge must be clear on the purpose of the order, and ensure that any terms and conditions imposed are directly related to this purpose. Secondly, the severity of the restrictions imposed must be subject to proportionality. As much as reducing the risk of terrorism is vital, the restrictions on the individuals must not be excessive and oppressive. Thus, the judge must ensure that the terms and conditions are proportional to the risks posed by the individual. For instance, if the risk of terrorism posed is low, the restrictions imposed should not be severe, as this may infringe on the individual's reasonable rights and freedoms. Thirdly, the order should be flexible enough to allow individuals to carry on with their daily lives. The judge should take into account the impact of the order on the individual's daily activities, such as employment, education, and family commitments. The terms and conditions should be flexible enough to accommodate individuals' needs and activities, while still reducing the risk of terrorism. Fourthly, the terms and conditions should be clear and specific. Vague or ambiguous terms and conditions may not be effective and may lead to misinterpretations. Moreover, clear and specific terms and conditions make it easier to monitor and enforce the order. Lastly, there should be ongoing assessment to determine the effectiveness of the terms and conditions and the need for continued supervision. The judge should review the terms and conditions periodically to ensure they are still relevant and effective in reducing the risk of terrorism. If the risks have decreased, the terms and conditions should be reviewed, and the restrictions lifted if necessary. To achieve the above considerations, some strategies can be employed. For instance, the defense counsel can provide detailed information and evidence to show that the restrictions imposed may not be proportional to the risks posed. Additionally, the defense can request that the terms and conditions be tailored to accommodate the individual needs and circumstances. The judges, on their part, should engage the parties involved in the case, including the prosecution and defense, to ensure that the terms and conditions imposed are reasonable and effective. The judges should also seek the input of experts in terrorism risk assessment to ensure that the orders are effective in reducing the risk of terrorism. In conclusion, the strategic considerations when dealing with Section 117.011(6) of the Criminal Code of Canada are vital in ensuring that the terms and conditions of the order are the least intrusive as possible, while still reducing the risk of terrorism. The strategies employed must aim towards ensuring that the restrictions imposed are proportionate, clear, flexible, and have ongoing assessment. Judges must be keen to engage the parties involved and seek the input of terrorism risk assessment experts to ensure that the orders are reasonable and effective.